The divorce process explained

01 Nov 2017

Today in Australia a court does not consider why the marriage ended. The only ground for divorce is that the marriage has broken down irretrievably. That is, there is no reasonable likelihood that the parties will get back together.

Separation

To be eligible to file an application for divorce, the parties must have been separated for at least 12 months.

If the parties separated but remained living under the same roof for any period of time (or are currently living under the one roof), there are further requirements that the Court will consider. You will need to provide additional evidence to prove that there has been a change in the marriage.

Married less than 2 years?

Parties married less than two years who want to divorce must attend counselling with a family counsellor or nominated counsellor to discuss the possibility of reconciliation with their spouse before applying for a divorce. A copy of the counselling certificate will need to be filed with the application.

Applying for a divorce

To apply for a divorce the parties must first satisfy the court that they have a valid marriage. A marriage certificate, with a sworn translation into English (if necessary) is needed. If no marriage certificate is available, the court may require the applicant to provide some alternate evidence of the marriage prior to granting divorce.

A person can apply for a divorce in Australia if either party regards Australia as their home and intends to live in Australia indefinitely, or they are an Australian citizen by birth, descent or by grant of Australian citizenship, or ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

Proper arrangements for any children of the marriage

The court will not grant a divorce in Australia unless it is satisfied that appropriate arrangements for any children are in place. That does not mean those arrangements are formal, nor does it mean that there is no dispute, but rather that at the time of the divorce hearing, the children are being appropriately cared and provided for.

The divorce hearing

As mentioned above the only ground for divorce is that the marriage has broken down irretrievably and there is no reasonable likelihood that the parties resuming married life.

There are circumstances where the parties do not need to attend Court. The party applying for a divorce must attend the divorce hearing where they made the Application for divorce themselves and/or where they have children who are under 18 years of age.

If the parties do not have children under 18, or if they made a joint Application for divorce, they can both choose not to attend your divorce hearing.

A party can only oppose the divorce where there is a dispute about whether the parties have been separated for 12 months, or the Court does not have jurisdiction.

Divorce hearings are generally quite brief and are usually conducted by a Registrar of the Court. The Registrar may ask the applicant questions about the information in Application or about the service of the Application on the other party.

Where young children are involved, the Registrar may ask about arrangements for the children, such as which parent they live with, how often they spend time with the other parent and how they are financially supported.

If the Registrar is satisfied that the grounds for divorce have been established and that the Application has been properly served on the other party (if your Application was not made jointly), the Court will grant the divorce.

The divorce order will become final one month and one day from the date of the hearing, at which time a Divorce Order will be sent to you and your former spouse (if they have provided their address).

What next?

It is important to note that the granting of a divorce does not decide issues about property and maintenance or parenting arrangements for the children.

If parties want to make arrangements about these issues they can make an agreement with their spouse and file it with a court, or seek orders from a court if they cannot reach an agreement.

If you want to apply for maintenance for yourself or a division of property, you must file a separate application within 12 months of the date the divorce becomes final. Otherwise, you will need the Court’s permission to apply.

Getting re-married?

For people wanting to remarry they should not plan to remarry until the divorce order is finalised. In most cases, this is one month and one day after the divorce hearing. But do not assume the divorce will be granted at the first court hearing as there may be additional evidence required.

You may, however, complete and lodge a Notice of Intended Marriage with an authorised celebrant before the divorce order is finalised. You must lodge the Notice with an authorised marriage celebrant at least one month before the date the marriage is solemnised, The authorised celebrant must sight a copy of the divorce order before the wedding can take place.

How much does it cost?

The current filing fee for an application for divorce is $865.00.

If you know someone who could benefit from this advice please suggest they contact (02) 8014 5885 or email info@nolanlawyers.com.au.